Use of Intermediaries in the Family Court

Articles, News

25/01/2024

Introduction

On 19th January 2024, the High Court handed down judgment in the case of West Northamptonshire Council (acting via Northamptonshire Childrens Trust) v KA (Mother & Anor) (Intermediaries) [2024] EWHC 79 (Fam). This judgment contained valuable guidance on the use of intermediaries in the Family Court.

Background

These proceedings concerned a 2.5 year old girl, X, who had been subject to these proceedings for 127 weeks. The mother was profoundly deaf and therefore was assisted by a British Sign Language (BSL) interpreter at hearings. The mother underwent a cognitive assessment during the proceedings which was conducted by Dr O’Rourke. Dr O’Rourke concluded that the mother did not have a learning disability, but her cognitive functioning was in the low average range. She recommended that all information be translated into BSL for the mother. Dr O’Rourke also stated that all legal jargon and concepts should be broken down and explained to the mother and advised that the mother would benefit from a deaf intermediary. Following this report, an application for an intermediary was made and granted. Therefore, it was directed that the mother should have the benefit of a BSL interpreter and a deaf intermediary.

The final hearing was originally listed on 6th November 2023 for 5 days. However, the hearing had to be adjourned as the mother’s deaf intermediary failed to attend the final hearing and no other deaf intermediary was available to attend the hearing. The matter was brought before the High Court to consider two matters:

(1) Whether a costs order should be made against the intermediary for the wasted costs of the 5-day final hearing that had to be adjourned.

(2) Whether to vary the order appointing a deaf intermediary for the mother at the final hearing.

Guidance on the Use of Intermediaries

The court noted that “The position in respect of the appointment, qualification and duties of intermediaries in the family justice system is not clearly set out either in the Family Procedure Rules (“FPR”) or in any Practice Direction.” [41]. However, the court noted that there is detailed consideration of the appointment and use of intermediaries in the Criminal Practice Directions 2015 and there is useful case law – the court specifically referred to the criminal case R v Thomas (Dean) [2020] EWCA Crim 117. The court acknowledged that “there are obvious and important differences between Family Court cases and those involving criminal charges” but noted that “the reasons for the appointment of intermediaries and their function in assisting those with communication difficulties facing important litigation, are essentially the same. Intermediaries are appointed, whether in criminal or family cases, to ensure that the individual in question can participate in the proceedings so that their fair trial rights are protected.” [43].

After considering the aforementioned criminal case and other criminal case law, the court identified the following principles in respect of the appointment of intermediaries [45]:

(a) It will be “exceptionally rare” for an order for an intermediary to be appointed for a whole trial. Intermediaries are not to be appointed on a “just in case” basis. Thomas [36]. This is notable because in the family justice system it appears to be common for intermediaries to be appointed for the whole trial. However, it is clear from this passage that a judge appointing an intermediary should consider very carefully whether a whole trial order is justified, and not make such an order simply because they are asked to do so.

(b) The judge must give careful consideration not merely to the circumstances of the individual but also to the facts and issues in the case, Thomas [36];

(c) Intermediaries should only be appointed if there are “compelling” reasons to do so, Thomas [37]. An intermediary should not be appointed simply because the process “would be improved”; R v Cox [2012] EWCA Crim 549 at [29];

(d) In determining whether to appoint an intermediary the Judge must have regard to whether there are other adaptations which will sufficiently meet the need to ensure that the defendant can effectively participate in the trial, Thomas [37].

(e) The application must be considered carefully and with sensitivity, but the recommendation by an expert for an intermediary is not determinative. The decision is always one for the judge, Thomas [38];

(f) If every effort has been made to identify an intermediary but none has been found, it would be unusual (indeed it is suggested very unusual) for a case to be adjourned because of the lack of an intermediary, Cox [30];

(g) At [21] in Cox the Court of Appeal set out some steps that can be taken to assist the individual to ensure effective participation where no intermediary is appointed. These include having breaks in the evidence, and importantly ensuring that “evidence is adduced in very shortly phrased questions” and witnesses are asked to give their “answers in short sentences”. This was emphasised by the Court of Appeal in R v Rashid (Yahya) [2017] 1 WLR 2449.

The court stated that all these principles are directly applicable to the Family Court. The judge emphasised that where there are parties that may struggle to understand proceedings and/or the language being used “the first and normal approach to this difficulty is for the judge and the lawyers to ensure that simple language is used and breaks taken to ensure that litigants understand what is happening.” [46].  The judge also reiterated that “it is the role of the judge to consider whether the appointment of an intermediary is justified. It may often be the case that all the parties support the appointment, because it will make the hearing easier, but that is not the test the judge needs to apply.” [47].

If this guidance is followed, it is anticipated that significantly fewer intermediaries will be appointed in the Family Court as it is not sufficient to argue that the appointment of an intermediary will make hearings easier, but there must be compelling reasons to appoint an intermediary. Before appointing an intermediary, the court must also consider whether other adaptations (such as, taking regular breaks and ensuring simple language is used by the advocates) can be made to the court process to ensure that the relevant party can effectively participate. As it should be exceptionally rare for an intermediary to be appointed for a whole final hearing, advocates should be conscious that the onus has been firmly placed on them to ensure that proceedings are conducted in a manner that litigants can understand.

Outcome

In respect of the facts of this particular case, the court found that the appointment of a deaf intermediary for the mother was necessary for the entirety of the hearing. The judge noted that the mother’s “communication issues here are profound, both because of her deafness, but also the further issues highlighted by Dr O’Rourke. These issues go well beyond the fact that she is profoundly deaf and encompass wider communication difficulties. It also appears that there is a particular problem with the use of a hearing intermediary for a person who is deaf, given the very specific interpretation issues involved with British Sign Language.” [48]. On that basis, she did not vary the order appointing a deaf intermediary for the mother at the final hearing.

Turning to the issue of a wasted costs order against the intermediary, it transpired that the intermediary did not attend the final hearing due to a tragic family incident which justified her not attending court and turning off all her devices. The intermediary had thought she had arranged for this to be communicated to the court and mother’s solicitors via her personal assistant, but this did not happen for unknown reasons. The court found the intermediary’s explanation wholly justifiable and therefore did not make a wasted costs order.

Featured Counsel

Louise Thomson

Call 2019

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